Citation Nr: 21007237 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-31 435 DATE: February 9, 2021 ORDER Service connection for a disability of the skin, other than lipomas, to include as secondary to exposure to contaminated water at Camp Lejeune, and as due to solar exposure during service, is denied. FINDINGS OF FACT 1. A disorder of the skin, other than lipomas, was not incurred during or initially manifest in service. 2. The Veteran does not have one of the diseases which may be presumed under law to have been caused by exposure to toxins at Camp Lejeune or by herbicides in Vietnam. 3. No other connection to service is shown; sun exposure during service has been ruled out as a cause of the Veteran’s currently shown skin disorders. CONCLUSION OF LAW The criteria for service connection for a skin disorder, other than lipomas, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1966 to August 1975. The Veteran was awarded the Combat Action Ribbon, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2012 Agency of Original Jurisdiction (AOJ) decision. The Veteran presented sworn testimony in support of his appeal during a May 2016 hearing before the undersigned Veterans Law Judge. The Board remanded in August 2018 and again in August 2020 for further evidentiary and procedural development. The Veteran contends he has a skin disorder, other than lipomas, for which service connection has been granted, that is related to his active service, to include exposure to contaminated water at Camp Lejeune and/or to herbicide exposure in Vietnam. He asserts that his skin problem(s) are manifested by noticeable dryness, flaking, and discoloration. The Board notes that, in the Post-Remand Brief dated January 2021, the Veteran’s representative cited regulations for establishing service connection for disabilities proximately due to another service-connected condition. No specific theory was advanced and there is no competent evidence of record suggesting an association with the skin disorders on appeal to the service-connected disabilities at this time. As such, the Board finds that a secondary service connection theory is not reasonably raised. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38U.S.C. §§1110; 38C.F.R. §§3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R. §§3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). 81 Fed. Reg. 62419(Sept.9, 2016). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See National Academy of Sciences’ National Research Council (NRC)’s report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects”). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These fourteen diseases are as follows: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. See 38C.F.R. §3.309(f). Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents. Chloracne and certain defined types of soft-tissue sarcoma are included in the presumption. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran had combat service in Vietnam. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in 38 U.S.C. § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). At a hearing held at the AOJ in May 2014, the Veteran testified to a visible skin condition on his forearm which he estimated started in the “early 80s.” He thought it might be related to a sunburn he had incurred during service. At his hearing in May 2016, the Veteran described the onset of a dry skin condition “[a]fter Vietnam.” But he also indicated that he noticed a dry skin condition after being at Camp Lejeune. The Veteran’s service treatment records do not reflect any lay or medical evidence of a skin condition other than service-connected lipomas. The post-service record reflects that the Veteran has experienced problems with his skin for a number of years. VA treatment records describe the Veteran’s dry skin and distinguish it from his lipoma condition. One treatment record from September 2015 describes the Veteran’s face as having a “reddish rash.” The Veteran received a number of VA examinations for his skin during the pendency of his appeal; however, each examination focused primarily on his lipoma condition. He received his most recent VA examination in March 2019; at that time, the examiner recorded that he had a diagnosis of xerosis cutis. He provided that this condition affects the Veteran’s arms from the elbows down and his legs from the knees down; it is not specific to one time of year. The Board accepts the Veteran’s xerosis cutis as a current diagnosis for purposes of this analysis. During the March 2019 VA examination, the Veteran expressly stated he had “none of this in the service” and never saw a corpsman or doctor for any skin condition while in the service because his skin problems did not start until years later. The examiner who performed the Veteran’s March 2019 VA examination opined that it is less likely that the Veteran has any current skin condition related to exposure to herbicide/agent orange or to Camp Lejeune water supply. The examiner identified diagnoses of actinic keratoses, seborrheic keratoses and xerosis, and explained, It is more likely as not that the Veteran’s current, common skin conditions are related to the same common causes as the general population such as his age, genetics, and solar exposure/over exposure over a lifetime. The solar exposure is not associated only with his military service time, but is the total exposure acquired over a lifetime –except for his sunburn which is an acute solar overdose situation...None of the Veteran’s current or previous skin lesions are known to be associated with, or caused by, herbicide exposure or exposure to Camp Lejeune water. The Board notes that the VA examiner attributed the Veteran’s skin disorders to his cumulative solar exposure, but did not directly state whether the Veteran’s solar exposure and reported instance of sunburn during service alone caused any of the skin disorders. For this reason, the most recent Board remand requested additional medical opinion as to whether it is more, less, or equally likely that the Veteran’s diagnoses of actinic keratoses, seborrheic keratoses, and xerosis were caused solely by solar exposure and sunburn occurring during his nine years of service. In an October 2020 medical opinion based upon a thorough review of the Veteran’s medical records, a VA physician opined that it is less likely that actinic keratoses, seborrheic keratosis or xerosis were caused solely—or even significantly—by his solar exposure during military service. The physician provided the following further explanation: 1) Actinic Keratoses are directly related to solar exposure but this includes the total sunlight exposure over a lifetime. It is notable that solar exposure as a young child/boy is felt to be the most critical time for developing subsequent AKs with particular emphasis on any sunburns sustained as a youngster. There is also felt to be a genetic component and being male and a history of high total sun exposure over a lifetime are risk factors. This is a very common skin condition in the general population. Actinic keratoses are considered markers for increased sun exposure and chronic sun damage. There is an increased incidence for basal cell carcinoma and squamous cell carcinoma in patients with AKs. 2) Seborrheic keratosis is a common skin lesion in the general population. They are benign lesions related to aging (typically over the age of 50) and genetics/family history of similar lesions. The role of ultraviolet sunlight exposure is not known and the research on the effect of sun exposure is inconsistent and conflicted. However, it is much less likely as not that solar radiation exposure acquired during his service time is a major (much less “solely” responsible” risk factor for developing seborrheic keratosis. 3) Xerosis is a very common skin condition related to ageing and is drying of the skin. It is associated with skin drying situations, typically with older patients, such as frequent hot bathing/showers, acidic soaps, and rooms with low humidity/indoor heating in the winder, etc. and is treated with lubricants moisturizing agents. It is not related to solar exposure and sun exposure is not reported as a risk factor for this condition. Upon careful review of the pertinent evidence of record, the Board concludes that service connection for a disability of the skin, other than lipomas, is not warranted. At the outset, the Veteran has not specifically alleged the manifestation of any of these skin disorders during combat service. As such, the provisions of 38 U.S.C. § 1154(b) do not apply. The Board next notes that the Veteran has provided an inconsistent recollection of the onset of his skin disorders ranging from in the “early 80s,” “[a]fter Vietnam,” after being at Camp Lejeune and most recently years later after service. Overall, the Veteran’s recollections regarding the onset of these skin disorders is too inconsistent to accurately determine the onset of symptoms by his statements alone and his statements must be viewed in light of the documented evidentiary record. See generally Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Absent any complaints or findings of skin problems documented during service, direct service connection is not warranted. As the Veteran does not have any of the skin diseases which may be presumed under law to have been caused by exposure to toxins at Camp Lejeune or by herbicides in Vietnam, service incurrence may not be legally presumed. No other connection to service is shown either. The medical opinions obtained in the attempt to support the Veteran’s contentions do not do so; to the contrary, each medical reviewer has concluded that no connection to service is established. The most recent medical opinion concludes that sun exposure during service alone could have caused actinic keratoses, seborrheic keratosis or xerosis. The opinions were obtained based upon consideration of the Veteran’s lay statements in light of the documented evidence, including the military examinations reports which did not disclose that the current skin disorders were manifested in service. The Board finds no inadequacies in the 2020 examiner opinion nor the fact that the examiner relied upon a history told to the examiner by the Veteran himself at that time, and there is no medical opinion to the contrary. As none of the skin disorders is listed as a “chronic” disease, the Veteran’s descriptions in and of themselves is insufficient to establish service connection under 38 C.F.R. § 3.303(b) or 38 C.F.R. § 3.309(a). In sum, the preponderance of the evidence is against the claim for service connection for a disorder of the skin, other than the already service-connected lipomas. The appeal must be denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.